K. Ramanna, J.
1. This appeal is filed by the appellant-plaintiff against the judgment and decree dated 11-12-2001 passed by the Civil Judge (Sr. Dn), Hospet in R.A. No. 50/1993 allowing the appeal and setting aside the judgment and decree dated 16-10-1993 passed by the Prl. Munsiff, Hospet in O.S. No. 242/1990.
2. For convenience, parties will be referred to by their rankings before the trial Court
3. The case of the plaintiff is that he is the absolute owner in possession and enjoyment of the property bearing No. 114 (old Nos. 124 & 125) (previous Nos. 137 & 138), 20th Ward, Ukkadakeri, Hospet, Bellary District. He purchased the said property under registered sale deed dated 3-9-1975 and he has been in possession and enjoyment of the same in his own right, title and interest He has also paid taxes regularly in respect of the suit schedule property. The first defendant illegally started constructing a pucca building without obtaining municipal license just in front and adjoining the southern compound wall of the suit schedule property just on the right side of the southern gate. Whereas, second defendant started putting up a thatched hut on the left side of the gate on 15-5-1990 despite protest by the plaintiff and members of his family. The plaintiff reported the matter to Municipality, Hospet Thereafter, spot inspection was conducted and a notice was issued to the first defendant to remove the unauthorised construction. But the defendants continued with the construction. Therefore, he filed a suit for permanent injunction and also mandatory injunction against the defendants.
4. In pursuance to the notice issued, the defendants appeared. The first defendant filed a detailed written statement denying the plaint averments contending that there is an open site inside the compound wall and there is no residential building in the suit property. The said open space is used for stocking of fodder. The first defendant did not know as to who is the real owner of the schedule property. It is also contended that pucca huts of the defendants were already in existence in the municipal area since time immemorial and defendants have been in possession of the same. They have also paid house taxes to Municipality from time to time. Due to heavy rain in the year 1989, huts of the defendants were damaged and it required major repairs. Therefore, the defendants reconstructed their huts in the year 1990. After completion of their work, plaintiff filed a suit against them and the plaintiff cannot seek injunction against third party over the municipal areas without claiming any enforceable right of the plaintiff. It is also contended that suit filed by the plaintiff is not maintainable as the plaintiff has no right over the said open space which is in possession of defendants unless he pleads his easementary rights or enforceable rights over the said space, as such, the plaintiff is not entitled to claim any relief under law. The description of the schedule given by the plaintiff is wrong and there is no public road towards the south of schedule property where the huts of the defendants are situated. Therefore, first defendant prays for dismissal of the suit.
5. Subsequently, the first defendant files additional written statement. The second defendant filed a memo adopting the written statements of first defendant.
On the basis of the above pleadings, the trial Court framed 4 issues and two additional issues. After recording the evidence of the parties and after hearing the learned Counsel for the parties, the trial Court recorded its findings and answered issue Nos. 1 & 2 and additional Issue Nos. 1 & 2 in the affirmative and issue No.3 in the negative, The trial Court decreed the suit of the plaintiff by holding that plaintiff is entitled to the relief of mandatory injunction and the plaintiff has proved that defendants have unauthorisedly put up the construction in front of the southern compound wall abutting the road. Being aggrieved the by the judgment and decree passed by the trial Court the defendants filed R.A. No. 50/1993 on the file of Civil Judge (Sr. Dn) at Hospet. The learned appellate Court, after re-appreciating the oral and documentary evidence, allowed the appeal by setting aside the judgment and decree passed by the trial Court Therefore, the plaintiff has come up with this appeal.
6. This Court on 19-6-2002 admitted the appeal and formulated the substantial questions of law:
(1) Whether the Court below was legally right in reversing the judgment of the trial Court by overlooking the principles of law that any citizen has right to question the act of a fellow citizen without any impediment in obstructing his right of use of a path way right?
(2) Whether the judgment passed by the lower appellate Court is in accordance with Order 41 Rule 31 CPC.
The respondents are served but unrepresented.
7. Sri Surana, learned Counsel for the appellant contended that first appellate court has not noticed that defendants have put up the construction on the left and right side of the gate abutting southern side of compound wall of plaintiff and that the huts are being put up on the public road belonging to the municipality without any right, title or interest. The right of ingress and egress is a vested right of the plaintiff and therefore, there is no need to seek the relief of declaration. Therefore, the first appellate Court has erred in holding that plaintiff should have sought the relief of declaration. The trial Court has rightly held that defendants have set up a false plea and have illegally put up their huts abutting to the southern compound wall on both sides of southern gate. The first appellate Court has not given reasons for holding that plaintiff has failed to establish his right The decisions relied on by the plaintiff before the first appellate Court has not been properly considered. The first appellate Court has not applied its mind to the material on record which has resulted in miscarriage of justice. Therefore, he prays for setting aside the judgment passed by the first appellate Court.
8. The learned Counsel for the appellant relied on various decisions in support: of his case. In Ganga Bai v. Vijay Kumar and Ors. : [1974]3SCR882 the Apex Court has held that there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one's peril, bring a suit of one's choice. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit
In the case of Rudrappa v. Virupakshappa 1975(2) Kar. L.J Shortnotes 49 it is held that the owner of a house adjoining a public road has certain rights in addition to those enjoyed by him as a member of the general public using the public road and the infringement of such a right amounts to special damage. Hence he is entitled to sue for an injunction to remove a wall which has the effect of reducing the width of the road in front of his house and thus obstructing free passage on the road.
In the case of Ram Swarup v. Municipal Board, Bulandshahr and Anr. : AIR1979All361 it has been held that public street vested in Municipality, house abutting on patri (side land) of street though its door not opening on that side-Municipality letting out Patri in front of A's house to B-B constructing house on Patri-A can sue for removal of construction and get it demolished.
In the case of Bala Din Yadav v. Ramdulare and Ors. : AIR1990All19 it has been held that where the plaintiff had an undoubted right of frontage to enable him to have access to the public road which access stood denied to him in consequence of the tin shed and other structures constructed by the defendant on the 'patri' intervening between public road and plaintiff's house which indisputably vested in the Public Works Department, it was held that such structures were liable to be removed. The plaintiff had a right of access to the public road by virtue of the fact that his house abuts on the road 'patri' adjoining the public road and therefore, any obstruction created by raising structures over that 'patri' in front of the plaintiff's house will indisputably have the effect of depriving him of access to the public road.
The learned Counsel also relied on the decision of the Apex Court in Dorab Cawasji Warden v. Coomi Sorab Warden and Ors. : [1990]1SCR332 wherein the Apex Court held that a mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the Court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.
9. In the case of Mst. Bhagwanti v. Mst. Jiuti and Anr. : AIR1975All341 it has been held that any person who has a house abutting on a public road or lane is entitled to access to the road or lane from the house and no person or authority can destroy that right. This right does not emanate from prescription or long user but from the fact that the house abuts on the public way. Hence, if an obstruction is made, by any person or authority, of such public way which affects the ingress and egress, special damage to the owner of the property must be presumed. Therefore it cannot be denied that the plaintiff had suffered inconvenience and therefore special damage in the circumstances of the case must be presumed.
10. I have carefully examined the material placed on record. The very contention of the appellant is that he has purchased the said property on 3-9-1975. The contention of the defendants was that the suit schedule property is an open space and they do not know whether appellant is the owner of the suit schedule property. Therefore, in order to prove that appellant is the lawful owner of the suit schedule property, appellant has produced various documents i.e., Ex. P-2 is the sale deed; Exs. P-3 & 4-tax receipts, Ex. P-8-application made by him to the Municipality and Ex. P-9 is the proceedings of the Municipality. The defendants had produced the documents-Exs. D-1 to D-7., Ex. D-7 is the certificate dated 2-11-1992 issued by the Hospet Municipality stating that Smt. Hussainamma, resident of 20th Ward has been given compensation of a sum of Rs. 100/-towards loss suffered due to heavy rain. Ex. D-1 is the demand register of building tax or land tax pertaining to G Lakshmamma and Exs. D-2 to 4 are the receipts for having paid building tax/land tax by G Gangamma and G. Lakshmamma, In the demand register, house number of G Gangamma was shown as 143 and subsequently numbered as 156 and thereafter house number of G Lakshmamma was shown as 131. They have also produced tax paid receipts. It is also a well settled law that mere payment of house tax do not confer right or title unless it is proved before the Court by producing the title deeds or other documents through which plaintiff claims right over the property. The trial Court while decreeing the suit, has given cogent reasons that plaintiff is the registered owner of the suit schedule property and the respondents have illegally constructed a pucca building without obtaining any licence from the Municipality, Hospet in front of the adjoining southern compound wall of the plaintiff. In fact, the Commissioner, City Municipality, Hospet issued a notice as per Ex. P-9 to the first defendant directing her to demolish the unauthorised construction. The first defendant, in order to prove that she has the absolute right or title over the property to construct the building, has produced the demand register of building tax extract and tax paid receipts. Merely because the defendants have stated in their evidence that their huts have been in existence since time immemorial, Ex. D-7-a certificate issued by the Municipality clearly indicates that on account of heavy rain, their huts were damaged and the Municipality has paid a compensation of Rs. 100/- by way of cheque. The evidence of P.W. 1 discloses that on 15-5-1990 first defendant started constructing the hut This discloses that the defendants have started constructing a pucca building in the pathway abutting the southern compound wall of the appellant The first appellate Court while reversing the said finding, has not given proper reasons for coming to such conclusion. The reasons assigned by the first appellate court are that before the trial Court, plaintiff has not pleaded that defendants have not left any space in-between the compound of the plaintiffs property and the alleged construction of the defendants. On this ground, the first appellate Court reversed the finding recorded by the trial Court which is totally incorrect. Being a lawful owner of the suit schedule property, plaintiff is entitled to protect his property and he is also entitled to make use the pathway which is in front of his house abutting the compound wall. If the persons like respondents tried to erect permanent structure or temporary structure abutting the compound wall, he has got every right to file a suit for mandatory injunction. The respondents-defendants have no right or title to construct any building or temporary structure over the suit schedule property. The defendants have not produced any title deeds to prove that the property abutting to the compound wall of the plaintiff is their own property or property belonging to some other person and also failed to prove that the same is not a public property. In the absence of such materials, without considering the oral and documentary evidence on record, the first appellate Court reversed the findings of the trail Court on the simple ground that appellant-plaintiff has not sought for declaration. If the plaintiff is not the owner of the pathway, pathway belongs to the Municipality. Every citizen has a right to ingress and egress and make use of the same. When the respondents tried to erect their structures abutting to the compound wall by illegally encroaching the pathway, the plaintiff being the aggrieved person, is entitled to seek mandatory injunction. In this case, the appellant-plaintiff who is a lawful owner of the suit schedule property, gets an inherent right to file a civil suit for mandatory injunction. The suit was filed in the year 1990 when the plaintiff noticed setting up of illegal construction by the defendants. Therefore, the law laid down by the Apex Court and the High Courts of different States cited supra squarely applies to the facts on hand. If a person illegally started erecting a shed or construction in the public property, then, aggrieved party like the appellant can file a suit and obtain a mandatory injunction. Therefore, in the light of the law laid down by the Apex Court, this appeal has to be allowed.
11. Hence, for the foregoing reasons, this appeal is allowed. The judgment and decree dated 11-12-2001 passed by the Civil Judge (Sr. Dn), Hospet in RA No. 50/1993 is hereby set aside. The judgment and decree dated 16-10-1993 passed by the Prl. Munsiff, Hospet in O.S. No. 242/1990 is hereby confirmed.